Petition for Writ of Certiorari — Stephen Brian Turner, Petitioner v. Melody Smith, et al.

NO. _______

In the

Supreme Court of the United States

STEPHEN B. TURNER,

Petitioner,

–V –

MELODY SMITH, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION TO PROCEED IFP AND

PETITION FOR WRIT OF CERTIORARI

GREGORY S. WALSTON

COUNSEL FOR PETITIONER

THE WALSTON LAW GROUP

FOUR CHARLTON COURT

SAN FRANCISCO, CA 94123

(415) 956-9200

GWALSTON@WALSTONLAW.COM

AUGUST 8, 2018

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

Petitioner is a parolee subject to a parole condition prohibiting him from

associating with his own fiancée. In Morrissey v. Brewer, 408 U.S. 471 (1972), this

Court provided for a hearing to determine the factual basis for parole violations. The

Ninth Circuit Court of Appeals has now effectively decided that claims stemming from

parole violations are not subject to judicial review. Specifically, the Ninth Circuit found

that, in enforcing parole decisions, parole enforcement officers are acting in a quasijudicial role requisite to absolute immunity. This Court should grant the Petition for

Writ of Certiorari because the Court now needs to provide clarity on the judicial review

of challenges to parole policies.

QUESTIONS PRESENTED

1. Whether, despite federal laws stemming from the Fourteenth Amendment

which grant prisoners the right to marry, it is constitutionally permissible to impose

parole conditions that deny a parolee the right to marry.

2. Whether granting parole officers absolute immunity effectively removes

judicial review.

i

PARTIES TO THE PROCEEDING

Petitioner



Stephen B. Turner

Respondents



Melody Smith, in her Individual and Official Capacity as Parole Officer;



Gregory Sims, in his Individual and Official Capacity as Assistant Parole

Supervisor;



John Bent, in his Individual and Official Capacity as Parole Supervisor; and



Brett Everidge, in his Individual and Official Capacity as Parole Officer.

There are no nongovernmental corporate parties requiring a disclosure statement

under Supreme Court Rule 29.6.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS AND ORDERS BELOW............................................................................. 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 3

REASONS FOR GRANTING THE PETITION ............................................................ 6

I.

THIS COURT SHOULD GRANT REVIEW TO DECIDE WHETHER ABSOLUTE

IMMUNITY SHOULD BE ALLOWED TO CIRCUMVENT JUDICIAL REVIEW OF

WHETHER A PAROLE CONDITION CAN PROHIBIT THE FUNDAMENTAL RIGHT TO

MARRY .................................................................................................................. 6

A. This Question Is Important ......................................................................... 13

B. This Case Is an Excellent Vehicle to Decide This Question ...................... 14

II. IN THE ALTERNATIVE, THIS COURT SHOULD GRANT REVIEW TO DECIDE

WHETHER PAROLE OFFICERS WHO IMPOSE UNCONSTITUTIONAL PAROLE

CONDITIONS SHOULD BE PROTECTED BY QUALIFIED IMMUNITY INSTEAD OF

ABSOLUTE IMMUNITY ......................................................................................... 15

CONCLUSION............................................................................................................. 20

APPENDIX TABLE OF CONTENTS

Memorandum Opinion of the Ninth Circuit (May 10, 2018) ................................App.1

Order Granting Defendants’ Motion for Summary Judgment and Denying

Plaintiff’s Motion for Partial Summary Judgment (June 4, 2018) ................App.4

Summary of Revocation Order .............................................................................App.11

Special Conditions of Parole (September 20, 2011) .............................................App.20

Special Conditions of Parole (August 20, 2010)...................................................App.31

Order Appointing Counsel (August 3, 2015) .......................................................App.35

iii

TABLE OF AUTHORITIES

Page

CASES

Akers v. McGinnis,

352 F.3d 1030 (6th Cir. 2003) .............................................................................. 11

Anderson v. Boyd,

714 F.2d 906 (9th Cir. 1983) ........................................................................... 17, 19

Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993) ................................. 17, 19

Bevelhymer v. Clark County,

No. 94-15203, 53 F.3d 337, 1995 WL 242320 (9th Cir. 1995) .............................. 13

Board of Directors of Rotary Int’l v. Rotary Club,

481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) ........................................... 7

Botello v. Gammick,

413 F.3d 971 (9th Cir. 2005) ................................................................................ 17

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) .............................................................................................. 17

Burns v. Reed,

500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) ............................................ 16

Butz v. Economou,

438 U.S. 478 (1978) .............................................................................................. 17

Clinton v. Jones,

520 U.S. 681 (1997) .............................................................................................. 17

Cousins v. Lockyer,

568 F.3d 1063 (9th Cir. 2009) .............................................................................. 17

Freeman v. City of Santa Ana,

68 F.3d 1180 (9th Cir.1995) ................................................................................... 7

Imbler v. Pachtman,

424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) ....................................... 15, 16

In re Law,

10 Cal.3d 21, 109 Cal. Rptr. 573, 513 P.2d 621 (1973) ...................................... 18

Johnson v. Rhode Island Parole Bd. Members,

815 F.2d 5 (1st Cir. 1987) ............................................................................... 18, 19

Kalina v. Fletcher,

522 U.S. 118, 118 S.Ct. 502 (1997) ................................................................ 15, 16

iv

TABLE OF AUTHORITIES—Continued

Page

KRL v. Moore,

384 F.3d 1105 (9th Cir. 2004) .............................................................................. 17

Lacey v. Maricopa County,

693 F.3d 896 (9th Cir. 2012) ................................................................................ 15

Loving v. Virginia,

388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) ....................................... 10, 11

Matthews v. Eldridge,

424 U.S. 319 (1976) ................................................................................................ 3

Matusick v. Erie County Water Authority,

757 F.3d 31 (2d Cir. 2014) .................................................................................... 13

Maynard v. Hill,

125 U.S. 190 (1888) ................................................................................................ 6

Morrissey v. Brewer,

408 U.S. 471 (1972) ........................................................................................... i, 14

Overton v. Bazzetta,

539 U.S. 126, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) ......................................... 7

Patterson v. Van Arsdel,

883 F.3d 826 (2018).......................................................................................... 15, 16

Poirier v. Massachusetts Dept. of Corr.,

558 F.3d 92 (1st Cir. 2009) ................................................................................... 13

Roberts v. United States Jaycees,

468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ................................................ 7

Saucier v. Katz,

533 U.S. 194 (2001) .............................................................................................. 11

Scotto v. Almenas,

143 F.3d 105 (2d Cir. 1998) ............................................................................ 18, 19

Skinner v. Oklahoma,

316 U.S. 535 (1942) ................................................................................................ 6

Swift v. California,

384 F.3d 1184 (9th Cir. 2004) .............................................................. 5, 17, 18, 19

Thornton v. Brown,

757 F.3d 834 (9th Cir. 2013) .................................................................................. 5

Turner v. Safley,

482 U.S. 78 (1987) .................................................................................................. 6

v

TABLE OF AUTHORITIES—Continued

Page

United States v. Napulou,

593 F.3d 1041 (9th Cir. 2010) ................................................................ 8, 9, 10, 12

United States v. Wolf Child,

699 F.3d 1082 (9th Cir. 2012) ...................................................................... passim

Waggy v. Spokane Cty. Wash.,

594 F.3d 707 (9th Cir. 2010) ................................................................................ 17

Wittman v. Saenz,

108 Fed.Appx. 548 (9th Cir. 2004) ...................................................................... 13

Zablocki v. Redhail,

434 U.S. 374, 98 S.Ct. 673 (1978) ........................................................................ 10

Zinermon v. Burch,

494 U.S. 113 (1990) ................................................................................................ 3

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ............................................................................................ passim

U.S. Const. amend. XIV ....................................................................................... passim

STATUTES

18 U.S.C. § 3553(a) ........................................................................................................ 8

18 U.S.C. § 3583(d) ........................................................................................................ 9

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 994(a) .......................................................................................................... 9

42 U.S.C. § 1983 ....................................................................................................... 4, 15

JUDICIAL RULES

Sup. Ct. R. 29.6 .............................................................................................................. ii

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Stephen B. Turner respectfully petitions this Court for a writ of certiorari to review the judgment of the Ninth Circuit Court of Appeals in this case.

OPINIONS AND ORDERS BELOW

The district court’s order granting Respondents’ motion for summary judgment

(Pet.App.5a) is unpublished. The opinion of the Ninth Circuit Court of Appeals

(Pet.App.1a-4a) is unpublished.

JURISDICTION

The judgment of the Ninth Circuit Court of Appeals was entered on May 10, 2018.

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED



U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

1

INTRODUCTION

This case involves serious constitutional challenges by a parolee who was

prohibited from marrying his fiancée—or even contacting her—as a condition of parole.

In a one-paragraph analysis, the district court granted summary judgment to Respondent parole officers on grounds that absolute immunity protects them (an argument

they did not even raise in their motion for summary judgment). Worse yet, the Ninth

Circuit Court of Appeals chose to affirm this flawed analysis in a one-paragraph analysis of its own.

Significantly, the Ninth Circuit did not discuss whether parole officials are

protected by absolute immunity when they engage in conduct that is not related to

granting, denying or revoking parole, or when they apply parole conditions arbitrarily.

Instead, the Ninth Circuit simply stated that absolute immunity allows Respondent

parole officers to single out Petitioner and prohibit him from associating with his own

fiancée.

This is an arbitrary imposition of unconstitutional state action and falls outside

the scope of absolute immunity. On its face, the conduct of a parole officer acting like a

police officer by enforcing regulations is not quasi-judicial and, by axiom, quasi-judicial

immunity is inapposite. Accordingly, the Court should grant certiorari.

Significantly, Procedural Due Process under the Fourteenth Amendment is

implicated when the Petitioner has been deprived of a significant liberty interest without due process of law This Court has held that pre-deprivation process is required

2

when the deprivation is foreseeable or recurring. (Zinermon v. Burch, 494 U.S. 113,

132 (1990).) And when pre-deprivation is required, that process typically requires

giving the parolee notice of the deprivation and the opportunity to respond to its

justification. (Matthews v. Eldridge, 424 U.S. 319, 333 (1976).)

STATEMENT OF THE CASE

1. Petitioner Stephen B. Turner was a physician. CT. 181, ER. 154.1 He was

charged with indecent exposure in 1993 (CT. 181, ER. 171), and his medical license

was thereafter revoked. CT. 181, ER. 161. In 2006, Petitioner was convicted of

practicing medicine without a license and related offenses, and was released on parole

in 2010. CT. 180, ER. 286. After paroling, Petitioner became engaged to Amy Miranda.

CT. 181, ER. 205. However, because Ms. Miranda had a 9-year old daughter, defendant parole officers prohibited Petitioner from associating with her. CT. 181, ER. 295,

385 [“You will have no contact with: Amy Miranda, aka ‘Kelly’”]. Petitioner was

therefore unable to marry Miranda, and their relationship has now “changed.” CT. 181,

ER. 198.

2. Original Proceedings. Petitioner filed this action pro se in 2011. CT. 2, ER. 1688. After several amendments, and a dismissal that was reversed by the Ninth Circuit

Court of Appeals, the district court granted in part and denied in part Respondents’

motion for judgment on the pleadings.

1 All references to “CT.,” “ER.,” and “Ex.” are to the record clerk’s transcript, excerpts of record, and

record exhibits on file with the Ninth Circuit Court of Appeals, Case No. 17-15538.

3

Plaintiff filed his Fifth Amended Complaint on March 2, 2016. The Fifth

Amended Complaint alleged causes of action for:

1.

Violation of 42 U.S.C. § 1983 for interfering with:

a.

Plaintiff’s right to use the judicial system to petition the government

for redress;

b.

Plaintiff’s right to associate and communicate with close family

members, including Plaintiff’s fiancée, and the right to marry his

fiancée;

c.

Plaintiff’s right to be free from arbitrary and capricious law enforcement and undue police intrusions;

2.

Negligence under state law;

3.

Violation of the Bane Act under state law; and

4.

Intentional infliction of emotional distress under state law.

CT. 168; ER. 089-088.

On December 2, 2016, the district court granted the parties’ stipulation to the

dismissal of Petitioner’s second, third and fourth causes of action without prejudice.

CT 183; ER. 414. That same day, the parties filed cross motions for summary judgment.

CT. 180, 184.

After the motions were fully briefed, the district court issued an order asking the

parties to file supplemental briefs on the issue of whether Respondents were entitled to

summary judgment on Petitioner’s claims of retaliation for exercising his First Amendment rights. CT. 196. After the parties filed their respective supplemental briefs, the

district court issued an order on March 7, 2017, denying Petitioner’s motion for partial

summary judgment and granting Respondents’ motion for summary judgment in its

4

entirety, including the retaliation arguments that the district court asked for sua

sponte.2 CT. 205, ER. 001-010.

3. The Ninth Circuit Court of Appeals. Petitioner timely appealed the district

court’s judgment to the Ninth Circuit Court of Appeals. He made two arguments that

remain relevant at this stage of the proceedings. He asserted that it was unconstitutional for parole officers to prohibit a parolee from associating and marrying his

fiancée. He also asserted that parole officers who prohibit a parolee from associating

with, and marrying their fiancée are not protected by absolute immunity.

The Ninth Circuit rejected Petitioner’s arguments and affirmed the district court.

Pet.App.1a-4a. The Ninth Circuit’s analysis of the denial of Petitioner’s right to marry

consisted of one paragraph:

Appellees are entitled to absolute immunity for the imposition of Appellant’s challenged parole condition. Appellant contends that the special

parole condition prohibiting contact with his fiancée violated clearly established law. However, a parole officer’s quasi-judicial acts, including the

establishment of a parole condition, are subject to absolute immunity.

Thornton v. Brown, 757 F.3d 834, 839-840 (9th Cir. 2013); see also Swift v.

California, 384 F.3d 1184, 1189 (9th Cir. 2004) (“Absolute immunity has

also been extended to parole officials for the imposition of parole conditions . . . ”).

Pet.App.2a.

The Ninth Circuit also rejected Petitioner’s argument that parole officials

violated his First Amendment constitutional rights when they revoked his parole after

he made public statements indicating that he was going to take legal action against

one of them.

2 The District Court even addressed Petitioner’s state-law claims, apparently having forgot that

those very claims had been voluntarily dismissed without prejudice on December 2, 2016.

5

This petition followed.

REASONS FOR GRANTING THE PETITION

The Fourteenth Amendment establishes the fundamental right of marriage.

Federal laws have established that prisoners have the right to marry. Turner v. Safley,

482 U.S. 78 (1987). Yet, in this case, the Ninth Circuit Court of Appeals has effectively

held that parolees do not have a right to marry, inasmuch as denial of that right will

not be subject to judicial review. The Ninth Circuit specifically avoided Petitioner’s

constitutional claim by deciding that since barring petitioner from his fiancée was a

parole condition and imposing parole conditions affords parole officers absolute

immunity, it did not have to ascertain whether the parole condition itself was unconstitutional. This is untenable and has serious consequences on the rights of

parolees to challenge their parole conditions, even when they are plainly unconstitutional.

I.

THIS COURT SHOULD GRANT REVIEW TO DECIDE WHETHER ABSOLUTE IMMUNITY

SHOULD BE ALLOWED TO CIRCUMVENT JUDICIAL REVIEW OF WHETHER A PAROLE

CONDITION CAN PROHIBIT THE FUNDAMENTAL RIGHT TO MARRY

The right to marry is one of the “basic civil rights of man,” fundamental to our

very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See

also Maynard v. Hill, 125 U.S. 190 (1888). In fact, marriage is such a fundamental

right that, although subject to substantial restrictions, it is one of the constitutional

rights not abridged by the prison context. Turner v. Safley, 482 U.S. 78, 95-96, 107

S.Ct. 2254, 96 L.Ed.2d 64 (1987).

6

It is well established that “implicit in the right to engage in activities protected by

the First Amendment [is] a corresponding right to associate with others . . . .” Roberts

v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The

First Amendment protects “certain intimate human relationships . . . that presuppose

deep attachments and commitments to the necessarily few other individuals with

whom one shares not only a special community of thoughts, experiences, and beliefs

but also distinctively personal aspects of one’s life.” Freeman v. City of Santa Ana, 68

F.3d 1180, 1188 (9th Cir.1995) (citing Board of Directors of Rotary Int’l v. Rotary Club,

481 U.S. 537, 545, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (internal quotation marks

omitted).

This Court has stated that the Constitution protects “certain kinds of highly

personal relationships.” (Roberts, 468 U.S. at 618, 619-20, 104 S.Ct. 3244.) The

protection is not restricted to relationships among family members. See Board of

Directors of Rotary Int’l, 481 U.S. at 545, 107 S.Ct. 1940. Outside of the prison context,

this Court has intimated that there is a right to maintain certain familial relationships. (Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003).)

Although this Court has not determined the scope of any associational rights retained

by prisoners, it has also “not [held] . . . that any right to intimate association is

altogether terminated by incarceration.” Ibid.

While this Court has not definitively spoken on this issue of whether a fiancée constitutes the type of “highly personal relationship” protected by the Constitution, the

Circuits have. In United States v. Wolf Child, 699 F.3d 1082, 1095 (9th Cir. 2012), the

7

Ninth Circuit even did so in the context of parolees. In that case, the Court analyzed

the issue of whether a special condition of supervised release which included a prohibition from dating or socializing with the defendant’s “life partner” implicated defendant’s liberty interest in intimate association. Id. The Court determined that a romantic

relationship with one’s “life partner implicates a particularly significant liberty interest

in intimate association.” Id. Significantly, the Ninth Circuit’s decision in Wolf Child

was based on its decision in United States v. Napulou, 593 F.3d 1041 (9th Cir. 2010),

which was decided only several months before the very parole decision challenged in

the instant case.

In Napulou, a case decided February 1, 2010, before the imposition of Petitioner’s

parole conditions, the Ninth Circuit held that while it “is not ordinarily required to

articulate reasons for imposing a condition of supervised release, we have recognized

an exception to this rule when a condition implicates a particularly significant liberty

interest. A ban on associating with a life partner implicates such an interest.” Id. at

1047. The Ninth Circuit found that the restriction on associating with persons with

misdemeanor convictions was not reasonably related to the risk that defendant would

reoffend, and that there was insufficient evidence that repeatedly incarcerating defendant for desiring to maintain a relationship with their “life partner” would best serve

the interests of rehabilitation or deterrence, or would afford greater protection to the

public. Ibid.

The Ninth Circuit further reasoned:

In determining the conditions to be imposed, however, the court must

consider certain factors set forth in 18 U.S.C. § 3553(a), including “the

8

nature and circumstances of the offense and the history and characteristics of

the defendant” and the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, to provide just

punishment, to afford adequate deterrence, to protect the public, and to

encourage rehabilitation. The district court’s discretion is further curtailed

by 18 U.S.C. § 3583(d), which provides that any condition must: (1) be

reasonably related to the goals of deterrence, protection of the public,

and/or defendant rehabilitation; (2) involve no greater deprivation of liberty

than is reasonably necessary to achieve those goals; and (3) be consistent with

any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a). [citation] The government bears the burden of

demonstrating that these statutory standards are met.

Id. at 1044.

Thus, 18 U.S.C. § 3583(d) provides limiting guidelines to what types of conditions

can be placed on parolees. The Ninth Circuit went on say that “if there is a reason for

interfering with Napulou and Kahau’s relationship that justifies the special condition

prohibiting them from contacting one another, regardless of the nature of the contact

and of their progress in achieving rehabilitative goals, the government must introduce

the appropriate evidence that would warrant the imposition of such a condition.” Ibid.

Here, Respondents subjected Petitioner to a blanket “no contact” prohibition

against relations with his fiancée, without any meaningful record attempting to justify

the restriction. Respondents introduced no such evidence and instead attempted to

justify the condition after the fact. They alleged that Petitioner had a prior sex offense

and that his fiancée was an alleged prostitute. However, neither justifies a complete ban

on Petitioner’s relations with his fiancée. At the outset, Respondents’ restriction was

not accompanied by any contemporaneous record or findings, which was required

under Napulou. At the time the instant parole decision was enforced, the Ninth Circuit

had specifically prohibited the very conduct at issue.

9

Further, Petitioner’s prior sex offenses were over twenty years old, and for

misdemeanor indecent exposure (whereas Wolf Child’s sex offense was for attempted

felony sexual assault only one year prior). As for the supposed prostitution, Petitioner

is at a loss for the apparent determination that once someone has supposedly been a

prostitute, her subsequent relationships are necessarily corruptive and impermissible.

That argument was disapproved of by the Napulou Court when it strongly admonished

that even two convicted felons can have a relationship that is supportive, mutually

beneficial, and protected by the Constitution. Napulou, 593 F. 3d 1048. On its face, a

ban on the relationship between certain types of people due to their past backgrounds

and not an assessment of their present actions confirms that this case is more akin to

Loving and is thus outside the proper scope of government.

It is clear that Respondents’ purposeful actions effectively ended his relationship

with his fiancée. Respondent Smith implemented parole conditions that prevented

Petitioner from contacting or seeing his fiancée, including barring telephone calls with

her. In addition to this Court’s examples of what constitutes a “substantial burden” on

fundamental rights such as the right to marry,3 this Court has also intimated that

conduct less than “a direct legal obstacle” to an individual’s choice to marry did not

trigger a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673,

n.12 (1978). Parole conditions are direct legal obstacles to what a person can and

3 See Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), the challenged statute at

issue placed a substantial burden on the right of marriage because it absolutely prohibited

interracial marriage. See also Zablocki v. Redhail, 434 U.S. 374 (1978), the challenged statute

substantially burdened the right of marriage because it forbade noncustodial parents with child

support obligations from marrying without first obtaining court permission. Id. at 384.

10

cannot do. Thus, implementing parole conditions that directly impede the ability to

marry do trigger a fundamental right and should, at the very least, be subject to some

form of judicial review.

Respondents’ action of creating a “no contact” parole condition “substantially

interfered” with Petitioner’s right to marry such that Petitioner’s fundamental right to

marry was implicated. At the time, no analysis was performed and no justifications for

the imposition were made. Further, if protecting Petitioner’s fiancée’s minor daughter

was truly the aim, there were other less restrictive means of accomplishing this, such

as preventing Petitioner from contact with the minor, or allowing Petitioner and his

fiancée to converse freely on the phone or meet up at neutral locations without the

minor child. See Akers v. McGinnis, 352 F.3d 1030, 1040 (6th Cir. 2003) (finding

direct and substantial burdens “where a large portion of those affected by the rule are

absolutely or largely prevented from marrying, or where those affected by the rule are

absolutely.”) (internal quotation marks omitted ).

Further, Respondents’ own motion for summary judgment, which raised only

qualified immunity, states that in Saucier v. Katz, 533 U.S. 194 (2001) the test to

determine liability under qualified immunity examines: (1) whether there was a violation of a constitutional right and (2) if so, whether that right was “clearly established”

when the defendant acted. Id. at 194. Here, there has been a violation of a clearly

established constitutional right—the right to marry and associate with one’s spouse.

That right has been clearly established. Loving v. Virginia, 388 U.S. 1 (1967) first

established that the right to marriage was protected by the Constitution. The Ninth

11

Circuit has twice decided that the right to marry and associate with one’s spouse is

extended to parolees and cannot be eroded without a significant and compelling

evidence that doing so would further a legitimate rehabilitative or penological purpose,

or protect the safety of the public. See United States v. Wolf Child, 699 F.3d 1082, 1095

(9th Cir. 2012); see also United States v. Napulou, 593 F.3d 1041 (9th Cir. 2010). Here,

neither the district court nor the Respondents met this burden and thus, the Ninth

Circuit’s affirmation of the grant for summary judgment was improper.

By contrast, there is no basis for conclusion that absolute immunity stemming

from quasi-judicial conduct applies here, because there is no quasi-judicial conduct.

Petitioner did not sue the individuals who are the decision makers in California’s

parole process. Rather, he sued the lower-level officers who enforce parole policies. On

its face, these individuals are not acting like judges. Rather, they are acting like police

officers. Quasi-judicial immunity has no application here. Indeed the district court’s

conclusion to the contrary raises the absurdity that quasi-executive action is not

subject to judicial review because it is quasi-judicial in nature. On its face, conduct

cannot be quasi-executive and quasi-judicial at the same time. And when parole

officers act like police officers and enforce policies, they are acting in a manner that is

quasi-executive, not quasi-judicial.

This Court should grant review to resolve the Ninth Circuit’s decisions in this case

and others, holding that enforcement of parole violations is not subject to judicial

review because it is quasi-judicial in nature.

12

A. This Question Is Important

1. Determining whether a fiancée qualifies as the type of “highly personal relationship” protected by the Fourteenth Amendment is an important question because

there is some disagreement among the circuit courts. The few Ninth Circuit cases

discussing whether a fiancée relationship is included within the right to intimate

association involve non-prisoners and are unpublished. See, e.g., Wittman v.

Saenz, 108 Fed.Appx. 548, 549-50 (9th Cir. 2004) (unpublished memorandum disposition) (concluding that “the First Amendment right of association extends to individuals

involved in an intimate relationship, such as fiancés.”); Bevelhymer v. Clark County,

No. 94-15203, 53 F.3d 337, 1995 WL 242320, *3 (9th Cir. 1995) (unpublished memorandum disposition) (recognizing that the Fourteenth Amendment protects intimate

association between unmarried couples).

However, other circuits have not been consistent in determining the boundaries of

“intimate association” relationships, and even then, those cases have not involved

prisoners’ rights. See, e.g., Matusick v. Erie County Water Authority, 757 F.3d 31, 5562 (2d Cir. 2014) (granting qualified immunity after finding that a relationship with a

fiancé was not clearly established to be protected under the right of intimate association); Poirier v. Massachusetts Dept. of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (“The

unmarried cohabitation of adults does not fall under any of the Supreme Court’s

bright-line categories for fundamental rights in this area, and we decline to expand

upon that list to include the type of relationship alleged here”) (citation omitted ).

13

In light of the dearth of evidence defining the contours of relationships protected

by the right of intimate association within a prison context, this Court should grant

review to decide the question of whether a prisoner or parolee’s relationship with his

fiancée is protected under the right of intimate association.

2. This Court’s decision in Morrissey v. Brewer, 408 U.S. 471 (1972) was a landmark ruling which changed the legal landscape for parolees by requiring a hearing to

determine the factual basis for a parole revocation. This case could equally change the

legal landscape for parolees as well as probationers across the United States. Millions

of people each year are placed on parole and probation. A significant number of those

offenders are given strict parole or probation conditions that infringe on their fundamental rights. Unfortunately, few of these offenders are afforded pre-deprivation

hearings to assess whether less restrictive means could be used and to assess the constitutionality of those conditions. Offenders who challenge their unconstitutional conditions face an uphill battle. Often by the time an offender concludes his timeconsuming challenge, the matter is moot because the offender has completed his parole

or probation. This Court now has an opportunity to resolve these problems and to decide

that pre-deprivation hearings are required when parole or probation conditions

infringe on fundamental rights. Thus, Petitioner prays that this Court grant his

petition.

B. This Case Is an Excellent Vehicle to Decide This Question

1. This case provides a clean vehicle to set guidelines for establishing whether the

Fourteenth Amendment forbids conditions that ban prisoners and parolees from

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marrying. The record is clear that neither the district court nor the Ninth Circuit Court

of Appeals performed an analysis as to the constitutionality of denying a parolee the

right to associate and marry his fiancée. The question whether the Fourteenth Amendment requires some type of due process or review is not obscured by other issues in

this case.

2. This Court generally appears to prefer to grant review in cases that include a

full and clear record, including written appellate opinions, and this case provides just

that. This case began in a district court which managed it for nearly six years, including

written briefs and oral hearings, before the case was appealed to a circuit court. The

appeal was decided both on written briefs and oral argument, so there is a strong

record for this Court to consider.

II.

IN THE ALTERNATIVE, THIS COURT SHOULD GRANT REVIEW TO DECIDE WHETHER

PAROLE OFFICERS WHO IMPOSE UNCONSTITUTIONAL PAROLE CONDITIONS SHOULD

BE PROTECTED BY QUALIFIED IMMUNITY INSTEAD OF ABSOLUTE IMMUNITY

The Ninth Circuit’s decision in this matter is also at odds with a case it decided

just earlier this year. Currently, officials are absolutely immune against suits under 42

U.S.C. § 1983 that arise from their performance of prosecutorial functions, even if the

acts in question were committed in bad faith. Imbler v. Pachtman, 424 U.S. 409, 42229, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In Patterson v. Van Arsdel, 883 F.3d 826, 829830 (2018), the Ninth Circuit decided that this type of immunity “is an extreme remedy,

and it is justified only where ‘any lesser degree of immunity could impair the judicial

process itself.’” Lacey v. Maricopa County, 693 F.3d 896, 912 (9th Cir. 2012) (en banc)

(quoting Kalina v. Fletcher, 522 U.S. 118, 127 (1997), 118 S.Ct. 502).

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The general presumption is that qualified immunity provides sufficient protection

to officials. Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991).

An official seeking absolute immunity bears the burden of showing that such immunity

is essential for the function in question. Id. at 486, 111 S.Ct. 1934.

In Van Arsdel, the Ninth Circuit decided to take a functional approach to determining whether a given action is protected by prosecutorial immunity. The Van Arsdel

Court found that immunity flows from “the nature of the function performed, not the

identity of the actor who performed it.” Patterson v. Van Arsdel, 883 F.3d at 829-830

(2018), citing Kalina, 522 U.S. at 127, 118 S.Ct. 502. In applying this approach, it distinguished between acts of advocacy, which are entitled to absolute immunity, and

administrative and “police-type” investigative acts which are not. To qualify as

advocacy, an act must be “intimately associated with the judicial phase of the criminal

process.” Imbler, 424 U.S. at 430, 96 S.Ct. 984. For such acts, absolute immunity

furthers the doctrine’s core goal of preventing retaliatory lawsuits that may impose

“unique and intolerable” burdens upon prosecutors. Id. at 425-26, 96 S.Ct. 984. Actions

classified as “advocacy” include initiating a prosecution and presenting the state’s case

(Imbler, 424 U.S. at 431, 96 S.Ct. 984), appearing at a probable cause hearing to

support an application for a search warrant (Burns, 500 U.S. at 491, 111 S.Ct. 1934),

and preparing and filing a motion for an arrest warrant. (Kalina, 522 U.S. at 129, 118

S.Ct. 502.)

It is established law that parole officers are absolutely immune from imposing

unconstitutional parole conditions only when they are acting in a quasi-judicial

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function, a distinction that the Ninth Circuit failed to make. The eligibility inquiry

for absolute immunity, then, turns on “the nature of the function performed, not the

identity of the actor who performed it.” Butz v. Economou, 438 U.S. 478, 511-12

(1978).4 It is well established law in the Ninth Circuit that parole officers may only be

acting within the bounds of absolute immunity when they are making quasi-judicial

decisions such as whether to grant, deny or revoke parole.

The Ninth Circuit decided in Swift v. California that it must not be determined

whether an action “relates to” the decision to grant, deny, or revoke parole, but

whether an action is taken by an official “performing a duty functionally comparable to

one for which officials were rendered immune at common law.” Swift v. California, 384

F.3d 1184, 1189 (9th Cir. 2004); see also, Antoine v. Byers & Anderson, Inc., 508 U.S.

429, 436-37, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993).

In Anderson v. Boyd, the Ninth Circuit also found that parole officers are not

entitled to absolute immunity for conduct “taken outside an official’s adjudicatory role

[,]” or “arising from their duty to supervise parolees.” Anderson v. Boyd, 714 F.2d 906,

909-910 (9th Cir. 1983). Further, in Anderson, the court found that parole officers are

not entitled to absolute immunity for their conduct while: (1) investigating parole violations, (2) ordering the issuance of a parole hold and orchestrating an arrest, and (3)

recommending the initiation of parole revocation proceedings.

4 The eligibility inquiry for absolute immunity, then, turns on “the nature of the function performed,

not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)

(citation and internal quotation marks omitted); see also Clinton v. Jones, 520 U.S. 681, 695 (1997);

Waggy v. Spokane Cty. Wash., 594 F.3d 707, 710-11 (9th Cir. 2010); Cousins v. Lockyer, 568 F.3d

1063, 1068 (9th Cir. 2009); Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005); KRL v. Moore, 384

F.3d 1105, 1113 (9th Cir. 2004).

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The Swift Court found that under California’s system of parole, a parole agent acts

as a law enforcement official when investigating parole violations and executing parole

holds. Swift, 384 F.3d at 1189 (9th Cir. 2004). In California, the issuance of a parole

hold is an act by the parole agent that takes place independently of the parole

decisional authority. In re Law, 10 Cal.3d 21, 23 n. 2, 109 Cal. Rptr. 573, 575 n.2, 513

P.2d 621, 623 n. 2 (1973). The ability to issue a parole hold gives the parole officer “the

power . . . to have the parolee restrained merely by exercising his authority to take the

parolee into custody and book him into a local jail.” Id. When issuing a parole hold, or

authorizing an arrest, a parole agent functions as a police officer. See Johnson v.

Rhode Island Parole Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987).

By contrast, in Scotto, the Second Circuit reasoned that when a parole officer

recommends that a senior official initiate parole revocation proceedings, the recommendation is not comparable to initiating a prosecution and is more analogous to “a

police officer applying for an arrest warrant.” Scotto v. Almenas, 143 F.3d 105, 112-13

(2d Cir. 1998). The recommending officer is thus only entitled to qualified immunity,

while the senior official who makes the discretionary decision to issue the warrant is

the one who initiates the revocation “prosecution” and is absolutely immune. Id. at 113.

Parole officers under the California regulations must report parole violations,

while the Parole Board is given the discretion to initiate the revocation proceedings.

See id. (“Parole violations . . . must be reported to the board.”). In Swift, the court found

that in construing an allegation of false reports made by two parole officers to justify

an arrest:

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[I]n the light most favorable to Swift, as we must, this statement parallels

the regulations and suggests that Christian and Rodriguez performed a

non-discretionary function, while another official made the discretionary

prosecutorial decision to issue the order for a revocation hearing. We conclude that, like the parole officer in Scotto, Christian and Rodriguez’s actions requesting that the BPT initiate revocation proceedings, were more

akin to a police officer seeking an arrest warrant, than to a prosecutor exercising quasi-judicial discretion to initiate criminal proceedings. Thus,

Christian and Rodriguez are not entitled to absolute immunity for recommending that the BPT initiate revocation proceedings.

Swift v. California, 384 F.3d 1184, 1193 (9th Cir. 2004).

It is also worth noting Footnote 4 of Swift:

The majority of circuits addressing the scope of official immunity for parole

officials have held that when a parole officer is performing a law enforcement function, the officer is entitled to only qualified immunity. See e.g.,

Johnson v. Rhode Island Parole Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987)

(“[T]he function of an arresting parole officer is more akin to that of a

police officer . . . such that the rationale for according that official absolute

immunity, as described previously by the Ninth Circuit [in Anderson], is

inapplicable to the parole officer.”); Scotto v. Almenas, 143 F.3d 105, 11213 (2d Cir. 1998) (deciding issue after Supreme Court’s decision in Antoine).

Id.

Thus, the Ninth Circuit should not have affirmed the district court’s decision that

parole officers qualify for absolute immunity when they enforce parole conditions that

infringe on the constitutional rights of parolees.

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CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

GREGORY S. WALSTON

COUNSEL FOR PETITIONER

THE WALSTON LAW GROUP

FOUR CHARLTON COURT

SAN FRANCISCO, CA 94123

(415) 956-9200

GWALSTON@WALSTONLAW.COM

AUGUST 8, 2018

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